July 2011 – Electronic Discovery Law

Foreign Applicant’s Request for Secret Access to Foreign Debtor’s Emails “Manifestly Contrary” to U.S. Public Policy

Jul 28 2011

In re Toft, No. 11-11049 (ALG), 2011 WL 3023544 (Bankr. S.D.N.Y. July 22, 2011)

In this case, a foreign applicant, Dr. Martin Prager, sought recognition and enforcement of a German court’s “Mail Interception Order” which authorized Prager, as insolvency administrator, to intercept the debtor’s postal and electronic mail. The court, following its determination that there was a sufficient basis to exercise jurisdiction, denied the application upon finding that the relief requested was manifestly contrary to U.S. public policy.

Court Upholds Sanctions against “International Man of Mystery” citing Affirmative Actions to Destroy Relevant Documents in Unallocated Space

Jul 21 2011

Genger v. TR Investors, LLC, No. 592,2010, 2011 WL 2802832 (Del. July 18, 2011)

As previously summarized on this blog (here), the Delaware Court of Chancery ordered sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction. On appeal, the Delaware Supreme Court upheld the sanctions, citing the defendant’s intentional, affirmative actions to destroy documents, and clarified that it did not “read the Court of Chancery’s Spoliation Opinion to hold that as a matter of routine document retention procedures, a computer hard drive’s unallocated free space must always be preserved.”

For e-Discovery Efforts “Wholly Devoid of Competence” and for Spoliation, Court Orders Sanctions and Prohibits Indemnification from Insurer

Jul 14 2011

PIC Group, Inc. v. LandCoast Insulation, Inc., No. 1:09-CV-662-KS-MTP, 2011 WL 2669144 (S.D. Miss. July 7, 2011)

A Special Master determined that defendant’s discovery failures were largely the result of a “callous and careless attitude” rather than a “craven effort to hide or destroy information”, save one instance of intentional deletion by defendant’s Manager of Legal Affairs. Adopting in part the Special Master’s recommendations, the court ordered sanctions, including production of the non-privileged contents of the manager’s hard drive and payment of plaintiff’s attorney’s costs and fees, with the condition that payment be rendered by defendant, not its insurance company.

Court Rejects Refusal to Issue Litigation Hold Before 26(f) Conference, Orders Litigation Hold on All Evidence Reasonably Related to Pending Litigation

Jul 08 2011

Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011)

In this case, plaintiff came to believe, based on defendant’s comments and refusal to issue a litigation hold, that relevant evidence would be destroyed. Accordingly, plaintiff moved for an Order to Preserve Evidence. Following consideration of the relevant factors and upon rejecting defendant’s arguments that plaintiff’s motion was improper prior to the parties’ Rule 26(f) conference, the court granted the motion and ordered defendant to implement a litigation hold on information that may reasonably be related to the pending litigation.

Upcoming Events – July 2011

Jul 08 2011

6th Annual Solo and Small Firm Conference (Sponsored by the Washington State Bar Association)

July 14-16, 2011
Ocean Shores Convention Center
Ocean Shores, WA

K&L Gates Staff Lawyer Beau Holt will present on the topic of “Ethics and Electronic Communication (Other than Social Media)” at 9:15 AM on Friday, July 15th. Topics to be addressed include ethical duties and technology habits; the web, the cloud, and metadata; and e-discovery and privilege in litigation.

To learn more, click here.

e-Discovery Case Law Update – Summer 2011 (presented by FIOS)

July 14, 2011
1-2 PM ET
Webcast

K&L Gates Partner Martha Dawson will participate in this quarterly case law update exploring recent decisions related to electronic discovery. Specifically, Martha will address the recent Rambus decisions issued by the Federal Circuit Court (summarized here) and the issue of spoliation sanctions. Other cases to be discussed during this presentation include Clean Harbors Envt. Servs. v. ESIS, Inc., (N.D. Ill. May 17, 2011), a case addressing recovery of e-discovery costs, and Steuben Foods, Inc. v. Country Gourmet Foods, LLC, (W.D.N.Y. Apr. 21, 2011), a case addressing issues surrounding the issuance of legal holds.

To learn more or to register, click here.

Connecticut Amends Rules Addressing Electronic Discovery, Effective 2012

Jul 07 2011

On June 20, 2011, the judges of the Superior Court adopted revisions to the Connecticut Practice Book, including many amendments addressing electronic discovery. Most amendments (including those addressing electronic discovery) will become effective on January 1, 2012. Although Connecticut’s rules previously addressed the issue of electronic discovery, the newest amendments provide substantially more instruction. Among the more notable amendments are the addition of Rule 13-5(9) allowing a court to issue a protective order which would allow for cost allocation and other remedies to avoid undue burden, etc. related to the discovery of electronically stored information; revisions to Rule 13-9(d) addressing the format of production; the addition of Rule 13-14(d) which closely, but not exactly, follows Federal Rule 37(f), and provides safe harbor for the loss of information resulting from routine, good faith operations of systems or processes “in the absence of a showing of intentional actions designed to avoid known preservation obligations”; and the addition of Rule 13-33 (Claim of Privilege or Protection After Production) which “provides a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery, and, if the claim is contested, permits any party that received that information to present the matter to the court for resolution.”

All of the amendments to Connecticut’s Practice Book are available here.

Court Reviews Plaintiff’s Facebook Account to Identify Material Subject to Discovery

Jul 01 2011

Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011)

In this case arising from a car accident which the plaintiff claimed resulted in physical and psychological injuries, the parties invited the court to conduct a review of Plaintiff’s social networking accounts “in order to determine whether certain information contained within Plaintiff’s accounts is properly subject to discovery.” Using Plaintiff’s log-in information, the court reviewed Plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.” (Plaintiff’s MySpace account was not searched as it had not been accessed since November 2008 and Plaintiff could not locate the log-in information.) The court then identified potentially relevant information to be produced, including, for example, photos and updates indicating recent motorcycle trips and “photographs and comments suggesting that he may have recently ridden a mule.” In finding that some of the “public information contained in Plaintiff’s account is properly subject to limited discovery in this case,” the court noted Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly discoverable under recent case law.”

Archive - July 2011